R v Krivosic [2021] NSWSC 437

Supreme Court New South Wales

Medium Neutral Citation: R v Krivosic [2021] NSWSC 437 Hearing dates: 28 April 2021 Date of orders: 29 April 2021 Decision date: 29 April 2021 Jurisdiction: Common Law - Criminal Before: Harrison J Decision: See [14] and [19]. Catchwords: EVIDENCE – whether probative value of evidence is substantially outweighed by danger that it might be unfairly prejudicial to the Crown – where Crown submits that evidence is irrelevant and prejudicial to its case – evidence inadmissible because only relevant to attack victim's character EVIDENCE – where defendant objects to words attributed to him in a witness statement to police – where words attributed are irrelevant, without apparent context and unrelated to proof of fact in issue Category: Procedural rulings Parties: Regina (Crown) Marko Krivosic (Accused) Representation: Counsel: M England with B Page (Crown) N Steel (Accused)

Solicitors: Office of the Director of Public Prosecutions (Crown) Jamieson Criminal Law (Accused) File Number(s): 2018/228553 Publication restriction: Nil

Judgment 1. HIS HONOUR: These reasons deal with two evidentiary disputes. 2. First, Mr Krivosic has foreshadowed an intention to lead evidence that when Andre Marques had a casual intimate relationship with Taylah Papadellis, her then partner George Nassif was in gaol. The Crown opposes that evidence upon the ground that its probative value is substantially outweighed by the danger that it might be unfairly prejudicial to the Crown. The dispute arises in the following context. 3. Marko Krivosic is charged with the murder of Mr Nassif on 22 July 2018 at an apartment in Warwick Farm. The Crown alleges that Mr Krivosic went to the apartment after learning that Mr Nassif and others were assaulting Mr Krivosic's friend Andre Marques in the foyer outside the apartment. There is evidence to suggest that the assault arose out of the fact that Mr Nassif was unhappy with Mr Marques because Mr Marques had had an intimate relationship with Taylah Papadellis, who was Mr Nassif's partner. There is also evidence to suggest somewhat curiously that Mr Nassif was demanding money from Mr Marques in those circumstances. There is no dispute in general terms about these matters. 4. It appears not to be in dispute that at the time that Mr Marques and Ms Papadellis became intimately involved with each other, Mr Nassif was serving a term of imprisonment. The details of his incarceration, including the offence or offences for which he had been sentenced, have not yet been revealed. Mr Krivosic contends that the fact of Mr Nassif's incarceration is relevant. That is said to be for the following reasons. 5. Mr Krivosic submits that the fact that Mr Nassif was in gaol at the relevant time is important context or background evidence to explain the degree of animosity that Mr Nassif had towards Mr Marques. He further claims that it also explains why Mr Marques did not fight back when Mr Nassif assaulted him outside the Warwick Farm apartment as earlier described. Moreover, Mr Marques told the police in an interview that he had previously been assaulted and detained by Mr Nassif until Mr Marques' father paid Mr Nassif $2,000. Finally, Mr Krivosic maintains that the evidence is also relevant and important because the assault on 22 July 2018 was the catalyst for Mr Krivosic's attendance at the apartment where Mr Nassif was killed. Mr Krivosic had been told in a telephone call from Alana Delforce that "his mate" was on the ground and that Mr Nassif was kicking him. Mr Krivosic was already aware that Mr Nassif had previously dealt with Mr Marques by demanding money from him. 6. Mr Krivosic contended further that this "unusual context" is more easily explained by the fact that this was not simply a case of a person having an affair with someone's partner. Superadded to the situation is that Mr Nassif was in gaol and effectively powerless to do anything about it - a factor that presumably caused greater distress and even humiliation. Mr Krivosic contended that this made the alleged violent conduct of Mr Nassif towards Mr Marques more likely. 7. Mr Krivosic's submissions suggest that whether there had been a fight between Mr Nassif and Mr Marques, or whether in truth it amounted only to an unresisted assault, will be a fact in issue in the proceedings. Precisely what significance or relevance the difference between those competing possibilities will have in the disposition of these proceedings is difficult at this stage to discern with any confidence. The reason for this is that Mr Krivosic's attendance at the apartment following his conversation with Ms Papadellis does not appear to be in any way predicated upon or informed by his understanding or appreciation of anything more than that his friend Mr Marques was being bashed. The unadorned fact that Mr Krivosic turned up when he did, apparently in response to what Ms Papadellis told him, does not so far appear to be controversial. 8. The Crown's first response maintains that the evidence of Mr Nassif's incarceration is completely irrelevant. Mr Krivosic has opened his case to the jury upon the basis that he attended the apartment armed with a gun and that Mr Nassif was shot when Mr Krivosic was acting in defence of another. The as yet unspoken suggestion is that the other person in whose behalf he was acting was Mr Marques. On the Crown's submission, it can have no relevance, contextually or otherwise, that, as a factor which led Mr Krivosic to defend Mr Marques against an assault by Mr Nassif, Mr Nassif had been in gaol at the time when the affair with Ms Papadellis occurred. 9. I should note in passing that the evidence does not yet clearly indicate or suggest the way in which Mr Krivosic will contend that he was acting either in self-defence or in defence of Mr Marques. The latter was no longer present at the apartment when Mr Krivosic arrived. Accordingly, the evidence does not so far support the proposition that Mr Nassif represented a threat to Mr Krivosic against which he might reasonably have felt the need to defend himself at any time in the few seconds between when Mr Krivosic entered the apartment and when Mr Nassif was fatally shot in the back. The suggestion that Mr Nassif may have been reaching for a hammer under the sofa upon which he was seated at the time has not yet been fully explored. There is also a tension between the notion that Mr Krivosic was acting in any way to defend himself or Mr Marques and his opening to the jury that the firearm that he was pointing at Mr Nassif discharged accidentally. 10. The Crown's second response to the application is to say that the evidence is prejudicial to its case. The simple proposition is that the Crown perceives that there is a risk that the jury might improperly reason in their consideration of Mr Krivosic's guilt or innocence that Mr Nassif's criminal background is somehow relevant. The prejudice is even more pronounced on the Crown's submission by reason of the fact that there is no evidence likely to be before the jury to explain why or when he had been sentenced to a term of imprisonment and that the possibility of uninformed speculation by the jury about such matters only adds to the probability of unfair prejudice. In simple terms, the death of a man with a criminal record is entirely irrelevant to the circumstances giving rise to the death unless evidence about it is directed to discrediting him in a way that would potentially lead the jury into error. The prospect of that occurring is said to be unfairly prejudicial to the Crown. 11. In my opinion, the fact that Mr Nassif may have been in gaol at the time that Mr Marques and Ms Papadellis became intimately involved is completely irrelevant to any fact in issue in these proceedings. Mr Krivosic's alleged response to the information that Mr Marques was being assaulted by Mr Nassif is fundamentally unrelated to whether or not Mr Nassif was motivated by jealousy or humiliation after learning that Ms Papadellis was unfaithful to him when he was in gaol. While it may arguably be accepted that the extent and degree of Mr Nassif's response to the news may have been informed by this fact, it is not relevant in any way to Mr Krivosic's own response to the assault he was told about by Ms Delforce. The suggestion that it is contextually relevant does not in my view helpfully or meaningfully advance the submission. 12. To the extent that, in my opinion, the proposed evidence has no probative value, it is strictly unnecessary to consider its relationship to the danger that its reception might cause unfair prejudice to the Crown. The Crown contended that evidence that Mr Nassif had been in gaol was tantamount to an attack upon his character, in the same way as an attempt might be made to discredit a witness upon the basis of his or her criminal history, and that as Mr Nassif's credit could never be an issue in these proceedings, so also should the evidence tending to discredit him be rejected. 13. In simple terms, the evidence of Mr Nassif's incarceration can only be "relevant" to a collateral attack upon his character. His character is not in issue in the proceedings and such evidence carries a substantial risk of misuse by the jury. The spurious value of the evidence is in my opinion substantially outweighed, if not swamped, by the risk of unfair prejudice. In my opinion, evidence with no probative value that can only serve to create an unfavourable impression of Mr Nassif and which is unrelated to the circumstances of his death is definitively prejudicial. 14. It follows that I reject Mr Krivosic's proposal to lead the evidence in question. 15. Secondly, Alana Delforce gave evidence yesterday. She had previously provided two statements to the police to the terms of which it is fair to say she did not completely adhere. It is not controversial that this was entirely the result of her imperfect recollection and nothing else. 16. In the circumstances, the Crown sought in a limited way to cross-examine Ms Delforce - a course to which Mr Krivosic, with one exception, took no objection. I rejected a very small portion of Ms Delforce's statements to which Mr Krivosic objected. That decision arose in the following way. 17. Ms Delforce gave evidence that she told the police that she was present at the apartment when the altercation between Mr Nassif and Mr Marques occurred in the foyer. Ms Delforce had previously described what she had seen and done to the police in her statements. She said that she went back into the apartment after seeing what was taking place, and at paragraph 11 of her 23 July 2018 statement, continued as follows: "11. I smoked half a cigarette while I told Stacey what happened. I called my friend Jess… and told her to meet me at my place. After I called Jess I called Marko [Krivosic], I don't remember his phone number. I said, 'I think one of your friends has drama at the moment' he said 'I have my own things to deal with' Marko hung up on me. I assumed Mark [sic, Marko] knew everyone in the hallway. I got my stuff, left the unit and ran straight to the elevator. I didn't see anyone in the hallway when I left." 1. Mr Krivosic objected to the words in bold. Similar words appear in Ms Delforce's other statement of the same date. Mr Krivosic submitted that the words attributed to him by Ms Delforce were irrelevant and should be rejected. It was not submitted by Mr Krivosic that the words, if admitted, were unfairly prejudicial to him. 2. In my view, the words attributed to Mr Krivosic are irrelevant. Even assuming that the words were to be admitted as proof of the truth of what was said, they are devoid of content and so are meaningless. The words are without any apparent context and cannot literally be connected to any matter arising for determination in these proceedings. On the other hand, if the words were admitted only for the purpose of establishing that they were spoken by Mr Krivosic, they seem to me to be completely unrelated to the proof of a fact in issue in the proceedings. I rejected these words for those reasons.